Trial Court Used Wrong Evidentiary Standard When Changing Parties’ Custody Arrangement

by: Matt Newburg

03/21/2018 09:17 AM EST

A trial court improperly applied a “preponderance of the evidence” standard to determine that it was in a child’s best interest to change the established custodial arrangement, the Michigan Court of Appeals has ruled in Griffin v Griffin.

According to the Court of Appeals, the key in custody modification cases is for the trial court to first find – by clear and convincing evidence – that the proposed change is in the child’s best interest. To do this, the trial court must assess whether the proposed change is in the child’s best interest when compared to the status quo, and not when compared with the parties’ suggested modifications.

In Griffin, the trial court incorrectly used a preponderance of the evidence standard when weighing the statutory best interest factors, the Court of Appeals held in a 2-1 decision that reversed the trial court’s modification of the custody arrangement.

Court of Appeals Judge William B. Murphy disagreed with the majority’s decision, saying that any mistake made by the trial court was harmless. “[C]onsidering that the trial court found in favor of defendant on four of the child custody best-interest factors, … with the remaining factors being even, except for one, the court would be forced again to rule in favor of defendant, even on the clear-and-convincing standard. Reversal is unwarranted.”

Proposed Change In Custody

The plaintiff and the defendant, who were divorced, had one son together. They shared equal physical custody, using a two-week on/two-week off schedule. The defendant, who lived in Holt, Michigan, was an active duty member of the U.S. Coast Guard and received orders in January 2016 to report to a new station in Willowbrook, Illinois. The trial court entered an order allowing the defendant to change her legal residence with the child to Willowbrook, Illinois. According to the court’s order, the child’s legal residence would remain in Holt and the parenting-time schedule would remain the same.

In January 2017, the plaintiff filed a motion to modify the custody arrangement. The plaintiff argued that, because the child would be starting kindergarten, he could not continue to split his time between the plaintiff and the defendant, and that his need to start school was a material change in circumstances that required a review of the custody arrangement. However, the defendant asserted that the statutory best interest factors weighed in favor of her having full legal and physical custody of the child.

The trial court ultimately awarded primary custody to the defendant during the school year and primary custody to the plaintiff during the summer. The plaintiff was also awarded custody during spring break, the week of Thanksgiving and one-half of Christmas break. To reach this conclusion, the trial court applied a preponderance of the evidence standard, finding that the change in custody was in the child’s best interest.

“Status Quo” Controls

Writing for the Court of Appeals majority, Judge Michael J. Kelly explained that, when a parent files a motion for change of custody, there must be proper cause to revisit the original custody arrangement. Once this threshold is met, then the trial court must determine whether there is an established custodial environment.

If there is no established custodial environment, Judge Kelly continued, then the trial court may change custody if it finds, by a preponderance of the evidence, that the change would be in the child’s best interest. However, when there is an established custodial environment, a trial court may not change it unless there is clear and convincing evidence that a modification is in the child’s best interests, the judge noted.

In this case, the trial court determined that even though a change in custody would alter the established custodial environment, thereby requiring a clear and convincing standard be applied, it only had to apply a preponderance of the evidence standard. The trial court reasoned that because the plaintiff and the defendant had “the same” burden of proof and a change had to be made, it was appropriate to weigh the best interest factors under a preponderance of the evidence standard.

But according to Judge Kelly, neither the plaintiff’s proposal nor the defendant’s proposal was, by clear and convincing evidence, superior to the other. Moreover, the judge pointed out the custody statute does not require that one parent’s proposed change be better than the other parent’s by a clear and convincing standard. As a result, the trial court was not required to compare the two proposals to each other and decide which one was better, the judge said.

Rather, Judge Kelly said the trial court was required to find that the change in custody was in the child’s best interests when compared to the status quo. “[T]he child’s established custodial environment is the status quo, so in order to modify it the court must find by clear and convincing evidence that the change is in the child’s best interests when compared to the status quo, not when compared to every other conceivable or suggested modification,” he wrote. “In doing so, the court is free to adopt either party’s proposal in whole or in part, but it is equally permissible for the court to fashion an entirely new custody arrangement or to maintain the existing custody arrangement. The key is that the court must first find by clear and convincing evidence that the new custodial arrangement is in the child’s best interests.”

In conclusion, Judge Kelly found the trial court applied the wrong evidentiary standard and, as a result, reversal was warranted.

The experienced attorneys at Newburg Law, PLLC handle all types of family law issues, including child-custody and parenting-time matters. If you need help with a domestic relations problem, call us today at 517-505-2323 or email us at [email protected].